Case Summary

SHAYARA BANO V. UNION OF INDIA AND ORS (2017) 9 SCC 1

Advertisements

This Case Summary is written by Krithika CJ, a student of Bishop cotton women’s Christian law college

INTRODUCTION:

On 22nd of August in 2017 the Supreme Court of India pronounced Muslim separation through triple ta-laq illegal. Via triple (talaq–e–biddat) Muslim men could separate from their spouses in a flash and without state intercession by articulating “talaq” threefold. The case had been brought under the watchful eye of the court by the applicant Shayara Bano and other women who had been separated along these lines. Diverse Muslim ladies’ gatherings had interceded to help them. On the result, the court was parted three to two. The three adjudicators in the majority regarded triple talaq invalid, however utilized diverse thinking to come to their end result: Justices Rohington Nariman and U. U. Lalit held that the 1937 Muslim Personal Law (Shariat) Application Act, to the extent that it alludes to significantly increase talaq, disregarded Article 14 of the Indian constitution – the right to equality. Justice Kurian Joseph rather contended that triple talaq was not a substantial practice in Islam and was subsequently unlawful. The minority observance, held by Chief Justice Jagdish Singh Khehar and Justice Abdul Nazeer, was that however triple talaq was undesired, the courts couldn’t strike it down, and just the parliament could direct on the matter. The judgment is a milestone case in the Indian ladies’ development’s agitating for additional rights under the umbrella of personal laws. From there on 28th December, 2017 Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2017. On 9th August, 2018 alterations to the Bill was circled in the Rajya Sabha and on 10th August, 2018, the Chairman, Rajya Sabha announced that the Bill couldn’t be introduced because of absence of concurrence and from there on 19th September, 2018, it is said that the statute being referred to was proclaimed. Ultimately the Muslim women (protection of rights on marriage) Act, 2019 was passed by the parliament, as per this, a Muslim man is not allowed to divorce his wife abruptly by way of ‘Instant divorce’ as it has become unconstitutional and hence illegal. 

“The Triple Talaq Bill is not about politics but empowerment and justice for women. This bill is not about any specific religion and community. The bill is about humanity and justice.” — Ravishankar Prasad, Former Minister of Law and Justice of India. 


Advertisements

FACTS INVOLVED IN THE CASE:

Shayara Bano, spouse of Rizwan Ahmad was hitched for a period of 15 years. Her significant other articulated ‘talaq’ multiple times within the sight of two witnesses and conveyed ‘talaq-nama’ on 10/10/2015 to her. The spouse tested something very similar before the Supreme Court contending that these three practices – triple talaq, polygamy and nikah halala were illegal because of which the sacred legitimacy of such practice was called before an established seat of the apex court comprising of 5 adjudicators from various grounds. She guaranteed that these practices were violative of a few given under the Constitution of India including; 

a) Article 14 which states, “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”

b) Article 15(1) which states that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 

c) Article 21 which states that no person shall be deprived of his life or personal liberty except according to procedure established by law, and 

d) Article 25 which guarantees freedom of religion. 

Advertisements

MATTERS IN QUESTION:

1)Regardless of whether the act of talaq-e-biddat (explicitly immediate triple talaq, a fundamental act/practise of Islam). 

2)Regardless of whether the act of triple talaq abuses any fundamental rights. 

RELIGIOUS SUBSTRATUM OF THE MATTER:

The concept of divorce has been regarded as a natural sequel to a marriage. However, divorce was not recognised by all communities in olden days. The general belief that marriage is indissoluble is no longer welcome by the 21st century. It was merely granted as a matter of necessity which hold special circumstances and aims at bringing about a sense of equality between a man and a woman. The ideals may differ from one religion to other but it has persisted in-spite of acute disagreement, in order to set a balanced approach to marital life and conjugal relations. 

Under the Muslim law, a marriage is called off either by the death of either of the spouse or by divorce. The Quran grants permission somewhat in view of some face to the traditions and part of the way to empower men to dispose of a terrible association. The Prophet gave to the woman the right of obtaining separation on reasonable grounds. The Prophet is reported to have said that if a marriage is detrimental to a woman, then it can be allowed to be broken off. 

Advertisements

The bone of contention in this case was about one of the modes of talaq which is ‘Talaq-e-biddat’, recognised among the Hanafis which could be affected only by the husband. The effect of irrevocability itself makes the practise sinful as observed by Islamist jurists. It was said to be introduced by Omeyyads in order to break free from the severity of the legal repercussions. In the case of Fazlur Rahman v. Aisha, the validity of this type of divorce was held questionable and argued that it goes against the Quranic precepts. Furthermore, in excess of 20 Islamic nations including Egypt, Sudan, Morocco, Iraq, even Pakistan and Bangladesh, are refreshing Sharia laws, and have forced a directive against the utilization of ‘triple talaq’ by spouses. In Turkey and Cyprus, unilateral divorce also has necessary court intercession.

In Gazula Dasaratha Rama Rao v. State of A.P. Das J, said, “Even if there was a custom which has been recognised by law … that custom must yield to a fundamental right.” However, India is a country that has held customs to be sacrosanct but only upto a limit that those do not supersede or override the effects of statutory laws. 

In the case of A. Yousuf Rawther v. Sowramma, Justice V. R. Krishna Iyer observed that, “The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict divorce does not accord with Islamic injunctions … “ 

Hence, there was a decisive understanding that talaq has to be on the basis of good will and must not hold any malicious intent to outrage the dignity of a Muslim woman. 

CONTENTIONS OF THE PETITIONERS:

Advertisements

Article 14 of the Indian constitution expressly goes on to say that the state shall not deny equality to any person before the law and ensures equal protection for all within the ambit of the country’s territory. This article holds the essence of the right to equality. It not only removes discrimination but also implies that no individual shall exercise special privilege than the other. In a philosophical sense, equality is a dynamic norm. 

In this context, the practise of talaq-e-biddat, allowed a male spouse an extended right to cut the ties of a marriage, which clearly violates the basic principle of article 14 of the Indian constitution. A female spouse had no say in this particular matter and yet again it goes against the protection of all persons by Article 14. Furthermore, it infringes the right guaranteed under clause (1) of Article 15, which prohibits any kind of disparities on the basis of sexual orientation. This established an element of prejudice and unjust distinction of the female spouse in a marriage under Islamic law and made the way clearer to empower the Muslim women and change the social attitude of the community entirely. 

What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.” 

In Rukia khatun’s case, the division bench stated that the correct law of talaq as ordained by Holy Quran is that (a) Talaq must be for reasonable cause, and (b) Talaq must be preceded by an attempt of reconciliation between the husband and the wife and two arbiters. Thus, the apex court of India has disapproved the instant divorce followed in India. 

SETTLEMENT ARRIVED AT:

Advertisements

Justice R.F. Nariman and Justice U.U. Lalit saw that applying the trial on arbitrariness of the case within reach, plainly triple talaq is a type of talaq which is itself considered as something inventive for example it’s anything but Sunna, being a sporadic type of talaq. The Hanafi school which perceives this type of talaq, explicitly expresses that however legitimate it is corrupt in that it causes fierceness of God. Since triple talaq is moment and unalterable/irrevocable, clearly any endeavour at compromise among a couple by two referees from their families, which is vital for save conjugal tie, can’t at any point happen. It is additionally certain that this type of talaq is plainly subjective in sense that conjugal tie can be broken eccentrically and fancifully by Muslim man with no endeavour at compromise in order to save it. This type of ‘talaq’ must, accordingly, be held to be violative of key right contained under Article 14 of Constitution of India.

Justice Kurian Joseph likewise agreed the assessment of the over two Judges. He says that the section in Holy Quran identifying with talaq is very clear and unambiguous. Holy Quran has credited holiness to execution of marriage. Notwithstanding, he believes that in amazingly unavoidable circumstances, talaq is passable. Yet, an endeavour for compromise should be made and in the event that it falls flat, disavowal are Quranic fundamental strides before talaq accomplishes irrevocability. In triple talaq, this entryway is shut, thus, triple talaq is against fundamental precepts of Holy Quran and subsequently, it disregards Sharia.

Advertisements

Then again, Chief Justice Khehar and Justice Abdul Nazeer offered a contradicting input holding that religion involves confidence and not of rationale. It’s anything but open to court to acknowledge populist approach, over training (followed for as far back as 1400 years) which comprises indispensable piece of religion. Constitution permits supporters of each religion, to follow their convictions and strict customs. Constitution guarantees devotees, everything being equal, that their lifestyle, is ensured and would not be liable to any test, despite the fact that they may appear to others unsuitable, in this day and age and age. Constitution broadens this assurance, since confidence comprises strict cognizance of devotees. It is this strict awareness which ties adherents into independent substance. Constitution attempts to ensure and save, convictions of every one of independent substances under Article 25.

EXPOSITORY EPILOGUE:

Great amount of sanctity has been the moral foundation to the concept of marriage in Indian context. Yes, there are certain contradictory views in today’s society.  Social reforms are essential for growth and progress in any country. Even in the Hindu culture, the bond of marriage is considered to be inseparable. The husband and wife are regarded as one. The ideals of Ram and Sita from the great Indian epic – Ramayana are still followed. Community and change within a certain framework of principles and values are some of the basic tenets of a modern society. Therefore, it becomes a collective responsibility of all of us to shun undesirable social practised that have existed for centuries. Problems are not cured wholly by legal reformation but also requires some inward introspection of our own thoughts. 

Advertisements

Through time immemorial women have often been targeted atrociously. In this purview, the sad saga of the Muslim women was paid attention. It is the moral and legal duty of the people as well as the judiciary. Triple talaq has been termed ‘illegal’ and ‘unconstitutional’ and hence, blocks the escape routes for the accused. It sets an exemplary precedent which has similar circumstances and gives weightage to the victim’s plight. 

CONCLUSION:

It is no uncertainty that the triple talaq judgment has become a landmark judgment particularly on the part of private law in this country. It has given us different various viewpoints on the best way to manage them particularly Justice Joseph’s “socially grounded” judgment. This judgment unquestionably showed that the high court has gained from its previous slip-ups on close to home law. In spite of the way that it needed to give lucidity on sex equity and imbalance in close to home laws and how they are to be dealt with. It likewise didn’t address if “saving” triple talaq implied that it had no legitimate impact at all or three utterances implied one. Hence completely said and done, it’s anything but a move towards correspondence and has given a spine to how future individual law and social changes need to occur. This judgment likewise dealt with the minority is an entirely feasible way which is a stage toward secularism. It is trusted that this judgment will be taken in the brilliant light and will help Muslim lady to live a superior and safer life as guaranteed by the tradition that must be adhered to.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s